B-189140, NOV 23, 1977

B-189140, NOV 23, 1977

1. TRANSFERRED EMPLOYEE INCURRED LEGAL FEES FOR PREPARATION OF DEED, REVERSE OCCUPANCY AGREEMENT, RELEASE OF LIEN, RELEASE OF ESCROW FUNDS, AND EXECUTION AT SETTLEMENT. SINCE EMPLOYEE WAS ABSENT FROM SETTLEMENT AND SINCE DOCUMENTS WERE NECESSARY TO SALE OF HOUSE OR OTHERWISE CUSTOMARY IN AREA OF SALE, LEGAL FEES MAY BE PAID. 2. TRANSFERRED EMPLOYEE CLAIMS PAYMENT OF CHARGES FOR WIRING OF PROCEEDS OF SALE TO BANK AND NEW STATION AND FOR WIRING MONEY TO WIFE AT ANOTHER LOCATION. SINCE CHARGES ARE PERSONAL TO EMPLOYEE AND NOT CUSTOMARY IN AREA, REIMBURSEMENT IS DENIED. 3. TRANSFERRED EMPLOYEE CLAIMS REIMBURSEMENT OF LONG-DISTANCE TELEPHONE CALLS. REIMBURSEMENT MAY BE MADE AS MISCELLANEOUS EXPENSES ONLY FOR CALLS BETWEEN OLD RESIDENCE AND NEW STATION OR RESIDENCE RELATING TO NEGOTIATIONS PRIOR TO SETTLEMENT.

RICHARD B. DAWSON - RESIDENCE TRANSACTION EXPENSES:

BY A LETTER DATED MAY 17, 1977, COLONEL WILLIAM E. DYSON, USA, EXECUTIVE OF THE PER DIEM, TRAVEL, AND TRANSPORTATION ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, REQUESTED OUR DECISION CONCERNING A VOUCHER SUBMITTED BY MR. RICHARD B. DAWSON, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FOR REIMBURSEMENT OF CERTAIN EXPENSES INCURRED IN CONNECTION WITH THE SALE OF HIS FORMER RESIDENCE INCIDENT TO A PERMANENT CHANGE OF STATION.

THE RECORD INDICATES THAT EFFECTIVE OCTOBER 20, 1974, MR. DAWSON WAS TRANSFERRED FROM WASHINGTON, D.C., TO ROCK ISLAND, ILLINOIS. HAVING OBTAINED THE NECESSARY EXTENSION OF TIME, MR. DAWSON SOLD HIS FORMER RESIDENCE IN ALEXANDRIA, VIRGINIA, NEAR WASHINGTON, D.C., AND SETTLEMENT OCCURRED ON OCTOBER 18, 1976. ALTHOUGH MR. DAWSON WAS REIMBURSED FOR MOST OF HIS RESIDENCE TRANSACTION EXPENSES, THE FOLLOWING ITEMS WERE SUSPENDED:

ATTORNEYS FEES $301.60 TRANSFER OF MONEY (WIRED) 17.95 TELEPHONE CALLS 148.79 RELEASE OF SECOND MORTGAGE 9.00

TOTAL $477.34

AN ITEMIZED STATEMENT FROM MR. DAWSON'S ATTORNEY INDICATES THAT THE FOLLOWING LEGAL SERVICES WERE RENDERED:

PREPARATION OF THE DEED $ 50.00 PREPARATION OF THE REVERSE OCCUPANCY AGREEMENT 25.00 PREPARATION AND EXECUTION OF DOCUMENTS AT CLOSING 100.00 PREPARATION OF RELEASE OF PRE-EXISTING LIEN, REQUIRED TO BE DELIVERED BY YOU 100.00 PREPARATION OF DOCUMENTATION FOR RELEASE OF ESCROW FUNDS 25.00 REIMBURSEMENT OF REPORDUCTION COSTS 1.60

TOTAL $301.60

THE EMPLOYING AGENCY SUSPENDED THE LEGAL FEES ON THE GROUNDS THAT MR. DAWSON HAD ALREADY PAID FOR SUCH SERVICES IN THE FORM OF A REAL ESTATE BROKER'S COMMISSION. IN ADDITION, THE TRANSFER OF MONEY CHARGES AND COST OF TELEPHONE CALLS WERE DISALLOWED SINCE REIMBURSEMENT FOR INCIDENTAL CHARGES MAY BE MADE ONLY TO THE EXTENT THAT SUCH COSTS DO NOT EXCEED THE AMOUNT CUSTOMARILY CHARGED IN THE LOCALITY OF THE RESIDENCE. THE $9 FEE FOR RELEASE OF THE SECOND MORTGAGE WAS NOT PAID ON THE GROUNDS THAT MR. DAWSON WAS NOT CHARGED FOR THAT AMOUNT AT SETTLEMENT.

IN RECLAIMING THE SUSPENDED ITEMS, MR. DAWSON NOTES THAT BY REASON OF THE TRANSFER OF HIS OFFICIAL STATION, HE WAS ABSENT FROM THE FORMER RESIDENCE AT ALL TIMES RELEVANT TO THIS ACTION. HE THEREFORE RETAINED AN ATTORNEY TO PREPARE AND EXECUTE THE DOCUMENTS NECESSARY TO CONSUMMATE THE SALE IN HIS ABSENCE. REGARDING THE TRANSFER OF MONEY CHARGE, MR. DAWSON STATES THAT THE CHARGE WAS NECESSITATED BY HIS ABSENCE FROM THE FORMER RESIDENCE AND HE HAD BEEN ADVISED THAT THE SAFEST AND QUICKEST WAY TO TRANSFER MONEY WAS BY WIRE. IN RECLAIMING THE TELEPHONE CALLS, MR. DAWSON HAS ATTEMPTED TO CATEGORIZE THE CALLS INTO GROUPS CONCERNING NEGOTIATIONS, SETTLEMENT OF A LIEN, RELEASE OF EXCROW, AND SO FORTH, STATING THAT SUCH CALLS WERE MADE NECESSARY BY THE FACT THAT HE WAS STATIONED 900 MILES FROM THE OLD RESIDENCE. FINALLY, ALTHOUGH ACKNOWLEDGING THAT THE BUYER PAID A $9 FEE FOR RECORDING A DEED, MR. DAWSON STATES THAT HE PAID A $9 CHARGE FOR RELEASE OF THE SECOND MORTGAGE, AND IT IS THAT CHARGE FOR WHICH HE PRESENTLY SEEKS REIMBURSEMENT.

UPON SUBMISSION OF THE MATTER TO THIS OFFICE, THE FINANCE AND ACCOUNTING OFFICER AT MR. DAWSON'S NEW DUTY STATION RECOMMENDED PAYMENT OF THE LEGAL FEES, MONEY TRANSFER CHARGES, AND TELEPHONE CALLS. NO RECOMMENDATION WAS MADE CONCERNING THE RELEASE OF THE SECOND MORTGAGE.

REGARDING REIMBURSEMENT OF THE ATTORNEY'S FEE, STATUTORY AUTHORITY FOR REIMBURSEMENT OF THE LEGAL EXPENSES OF RESIDENCE TRANSACTIONS OF TRANSFERRED EMPLOYEES IS FOUND AT 5 U.S.C. SEC. 5724A (1970). IN OUR RECENT DECISION IN GEORGE W. LAY, 56 COMP.GEN. 561 (1977), WE REVIEWED THE POLICY CONCERNING THE EXTENT TO WHICH LEGAL FEES MAY BE REIMBURSED. IN THAT DECISION WE HELD THAT NECESSARY AND REASONABLE LEGAL FEES AND COSTS, EXCEPT FOR THE FEES AND COSTS OF LITIGATION, INCURRED BY REASON OF THE PURCHASE OR SALE OF A RESIDENCE INCIDENT TO A PERMANENT CHANGE OF STATION MAY BE REIMBURSED PROVIDED THAT THE COST ARE WITHIN THE CUSTOMARY RANGE OF CHARGES FOR SUCH SERVICES WITHIN THE LOCALITY OF THE RESIDENCE TRANSACTION. SINCE, HOWEVER, OUR DECISION IN LAY WILL BE APPLIED PROSPECTIVELY ONLY TO CASES IN WHICH SETTLEMENT OF THE TRANSACTION OCCURS ON OR AFTER APRIL 27, 1977, THE PRESENT MATTER MUST BE DETERMINED IN ACCORDANCE WITH THE PREVIOUSLY APPLICABLE LAWS AND DECISIONS.

REGULATIONS PROVIDING FOR PAYMENT OF LEGAL FEES ARE CONTAINED IN THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101-7) PARA. 2-6.2C (MAY 1973). THAT PARAGRAPH PROVIDES GENERALLY THAT LEGAL COSTS WILL BE REIMBURSED ONLY TO THE EXTENT TO WHICH SUCH COSTS HAVE NOT BEEN INCLUDED IN THE SERVICES OF A BROKER. IN ADDITION, FTR PARAGRAPH 2-6.3C PROVIDES THAT TECHNICAL ASSISTANCE IN DETERMINING THE REASONABLENESS OF AN EXPENSE MAY BE OBTAINED FROM THE LOCAL OR AREA OFFICE OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD) SERVING THE AREA IN WHICH THE EXPENSE OCCURRED. ALTHOUGH THE AGENCY SUSPENDED THE CLAIMED ATTORNEY'S FEE ON THE BASIS THAT THE SERVICES RENDERED BY THE ATTORNEY WERE INCLUDED IN THE BROKER'S COMMISSION, THERE IS NO INDICATION THAT A HUD OFFICE WAS CONTACTED CONCERNING THAT DETERMINATION. ACCORDINGLY, WE SOUGHT ADVICE FROM HUD AND WERE INFORMED THAT IN THE ALEXANDRIA AREA, THE SELLER IS RESPONSIBLE FOR FURNISHING THE DEED, AND, IN THE ABSENCE OF A CONTRARY AGREEMENT WITH THE BROKER, SELLERS FREQUENTLY RETAIN ATTORNEYS TO PREPARE A DEED. CONCERNING THE OTHER ELEMENTS OF THE ATTORNEY'S FEE, WE WERE ADVISED THAT NO GENERAL CUSTOM EXISTS IN THE AREA REGARDING THE REVERSE OCCUPANCY AGREEMENT, RELEASE OF LIEN, AND RELEASE OF EXCROW FUNDS, BUT THAT THE CHARGES WERE NOT UNREASONABLE IN VIEW OF MR. DAWSON'S PARTICULAR NEEDS. MOREOVER, SINCE MR. DAWSON WAS NECESSARILY ABSENT DUE TO HIS TRANSFER, THE CHARGE FOR PREPARING AND EXECUTING THE DOCUMENTS AT REASONABLY RELATED TO THEIR PREPARATION AND MAY THEREFORE BE REIMBURSED. FRANK C. HIDER, JR., B-188487, JULY 15, 1977. BASED UPON THE FOREGOING, THE ATTORNEY'S FEE IN THE AMOUNT OF $301.60 MAY PROPERLY BE PAID.

WITH RESPECT TO THE CLAIMED $17.95 IN CHARGED FOR THE TRANSFER OF MONEY, WE NOTE THAT ON OCTOBER 18, 1976, MR. DAWSON PAID THE BUYER'S ATTORNEY $6.50 TO COVER THE COST OF WIRING THE PROCEEDS OF THE SALE TO MR. DAWSON'S BANK IN ROCK ISLAND. THE SECOND CHARGE OF $11.45 WAS PAID BY MR. DAWSON ON NOVEMBER 8 1976, TO WESTERN UNION FOR THE PURPOSE OF SENDING $200 TO HIS WIFE IN WASHINGTON, PENNSYLVANIA. SINCE THE NOVEMBER 8, 1976, CHARGE OCCURRED AFTER THE HOUSE WAS SOLD AND CONCERNED THE TRANSFER OF MONEY TO A LOCATION UNRELATED TO THE SALE, THAT CHARGE DOES NOT APPEAR TO BE RELATED TO THE RESIDENCE TRANSACTION. LIKEWISE, THE DISTRIBUTION OF THE PROCEEDS OF A RESIDENCE TRANSACTION IS ORDINARILY ACCOMPLISHED BY CHECK. APPEARS THAT THE PROCEEDS WERE WIRED TO MR. DAWSON AS AN ACCOMODATION BY THE PURCHASER'S ATTORNEY. SINCE A SEPARATE CHARGE WAS MADE FOR THAT SERVICE, IT DOES NOT APPEAR THAT THE WIRING OF MONEY IS EITHER A REQUIRED OR CUSTOMARY SERVICE. ACCORDINGLY, THE $17.95 CLAIM FOR TRANSFER OF MONEY MAY NOT BE PAID.

CONCERNING REIMBURSEMENT FOR THE LONG-DISTANCE TELEPHONE CALLS, WE HAVE HELD THAT SUCH EXPENSES MAY BE ALLOWED OR DISALLOWED DEPANDING ON THE PURPOSE OF THE CALL. WE HAVE, THEREFORE, PERMITTED REIMBURSEMENT UNDER THE MISCELLANEOUS EXPENSES OF PARAGRAPH 2-3.3A(2) OF THE FTR ONLY WHEN THE TELEPHONE CALL CONCERNED AT ITEM WHICH WOULD CONSITIUTE AN ALLOWABLE EXPENSE. WALTER ALT, B-185160, JANUARY 2, 1976. THUS, IN ALT, WE PERMITTED REIMBURSEMENT OF A LONG-DISTANCE TELEPHONE CALL BY AN EMPLOYEE WHO HAD ALREADY TRANSFERRED TO HIS NEW STATION SINCE THE CALL WAS NECESSARY TO NEGOTIATE THE CONTRACT OF SALE FOR HIS FORMER RESIDENCE. THE PRESENT CASE, THE CLAIMANT HAS LISTED THE TELEPHONE CALLS MADE BETWEEN THE OLD AND NEW STATIONS, AND HAS IDENTIFIED THE PURPOSE OF THE CALLS BY GROUPING TOGETHER CALLS RELATED TO THE SAME SUBJECT. IN BROAD TERMS, THE CALLS RELATED TO NEGOTIATIONS OF THE SALES CONTRACT, LIQUIDATION OF A SECOND MORTGAGE, AND OBTAINING THE PROCEEDS OF THE SALE FROM AN ESCROW ACCOUNT. WE NOTE THAT CERTAIN OF THE CALLS OCCURRED AFTER THE DATE OF SETTLEMENT, AND MANY OF THE CALLS MADE FROM THE OLD RESIDENCE WERE TO EXCHANGES OTHER THAN THE NEW DUTY STATION OR PERSONAL RESIDENCE. IN VIEW OF OUR DECISION IN ALT, THE TELEPHONE CALLS RELATING TO THE NEGOTIATIONS MAY PROPERLY BE PAID SUBJECT TO THE LIMITATION OF FTR PARA. 2-3.3. SINCE THE SELLER OF PROPERTY MUST CONVEY CLEAR TITLE, THE CALLS RELATIVE TO LIQUIDATION OF THE SECOND MORTGAGE MAY SIMILARLY BE PAID SUBJECT TO THE SAME LIMITATION. SEE STEPHEN J. PETRO, B-183160, NOVEMBER 17, 1975. HOWEVER, THE CALLS CONCERNING OBTAINING THE PROCEEDS OF THE SALE AFTER SETTLEMENT ARE PERSONAL TO THE EMPLOYEE AND NOT REQUIRED TO EFFECT THE SALE ITSELF. THEREFORE, THE TELEPHONE CALLS OCCURRING AFTER OCTOBER 18, 1976, THE DATE OF SETTLEMENT, MAY NOT BE PAID. SIMILARLY, WE PERCEIVE NO APPARENT NEXUS FOR THE TELEPHONE CALLS BETWEEN THE OLD RESIDENCE AND TELEPHONE EXCHANGES OTHER THAN THE NEW DUTY STATION OR RESIDENCE. ACCORDINGLY, IN THE ABSNECE OF SUBSTANTIAL JUSTIFICATION, NO CALLS OTHER THAN BETWEEN THE OLD RESIDENCE AND THE NEW DUTY STATION OR RESIDENCE MAY BE PAID.

FROM THE RECORD WE ARE UNABLE TO ASCERTAIN WHETHER MR. DAWSON HAS RECEIVED THE $200 FOR MISCELLANEOUS MOVING EXPENSES. IF MR. DAWSON HAS RECEIVED THE $200 THE ADDITIONAL ALLOWANCE FOR TELEPHONE CALLS WILL BE IN EXCESS OF THE $200 PROVIDED IN PARAGRAPH 2-3.3A(2) OF THE FTR AND THE EMPLOYEE THEN MUST SUPPORT THE ENTIRE MISCELLANEOUS EXPENSE ALLOWANCE WITH EVIDENCE AS REQUIRED BY PARAGRAPH 2-3.3B OF THE FTR. SEE ALT, SUPRA.

FINALLY, WE CONCUR WITH THE AGENCY THAT MR. DAWSON WAS NOT CHARGED A $9 FEE FOR RECORDING A DEED. HOWEVER, ITEM 505 OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT DISCLOSURE/SETTLEMENT STATEMENT INDICATES THAT THE SELLER WAS CHARGED $9 FOR RELEASE OF SECOND DEED OF TRUST. SINCE IT DOES NOT APPEAR THAT MR. DAWSON WAS REIMBURSED FOR THIS FEE, THE $9 CHARGE MAY BE PAID.

ACTION ON THE VOUCHER SHOULD BE TAKEN IN ACCORDANCE WITH THE ABOVE.